Legros v. BP Exploration & Production, Inc., et al, No. 2:2016cv03050 - Document 34 (E.D. La. 2018)
Court Description: ORDER AND REASONS - IT IS ORDERED that Defendants' 33 Motion for Summary Judgment is GRANTED. Signed by Judge Susie Morgan on 10/4/2018. (bwn)
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Legros v. BP Exploration & Production, Inc., et al Doc. 34 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A ALLISON LEGROS, Plain tiff CIVIL ACTION VERSU S N O. 16 -3 0 50 BP AMERICAN PROD U CTION COMPAN Y, ET AL., D e fe n d an ts SECTION : “E” ( 1) ORD ER AN D REAS ON S Before the Court is a Motion for Summ ary J udgm ent filed by Defendants BP Exploration & Production Inc. and BP Am erica Production Company (“BP”). 1 Plaintiff has not filed an opposition to the motion. Accordingly, the Court considers Defendants’ statem ent of uncontested facts to be admitted pursuant to Local Rule 56.2. Although the dispositive m otion is unopposed, summ ary judgment is not automatic, and the Court must determine whether Plaintiff has shown entitlement to judgm ent as a matter of law. 2 BACKGROUN D Plaintiff filed suit pursuant to the Back End Litigation Option (“BELO”) approved in the DEEPWATER HORIZON Medical Benefits Class Action Settlement Agreem ent (“Medical Settlem ent”) as part of the Deepwater Horizon Oil Spill Litigation, MDL 2179. 3 The Medical Settlem ent permits certain class members, including clean-up workers like 1 R. Doc. 33. See, e.g., Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 20 0 6); F ED. R. CIV. P. 56(a). 3 R. Doc. 1; see In re: Oil Spill by the Oil Rig “Deepw ater Horizon” in the Gulf of M exico, on April 20 , 20 10 , No. 10 -m d-2179, R. Doc. No. 8217 (E.D. La. J an . 11, 20 13) (Order and Reasons Approving Medical Benefits Settlem en t Agreem ent); see also R. Doc. 33-4 (Medical Settlem ent excerpts). 2 1 Dockets.Justia.com Plaintiff, to sue BP for “Later-Manifested Physical Conditions,” (“LMPCs”) as defined in the agreem ent. 4 The agreement defines a LMCP as: a physical condition that is first diagnosed in a medical benefits class member after April 16, 2012, and which is claim ed to have resulted from . . . exposure to oil, other hydrocarbons, or other substance released from the MC252 WELL and/ or the Deepw ater Horizon and its appurtenances, and/ or exposure to dispersants and/ or decontaminants used in connection with the response activities . . . . 5 On November 29, 2012, Plaintiff was diagnosed with a meningiom a in her sinus cavity, qualifying the condition as a LMPC. 6 BP moves for sum m ary judgm ent on the grounds that Plaintiff has failed to produce evidence sufficient to support that her LMPC was caused by exposure to oil and/ or other substances related to the DEEPWATER HORIZON blowout and/ or response activities. 7 SU MMARY J U D GMEN T STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”8 “An issue is m aterial if its resolution could affect the outcom e of the action.”9 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrain[s] from m aking credibility determ inations or weighing the eviden ce.”10 All reasonable inferences are drawn in favor of the non-m oving party. 11 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost 4 R. Doc. 33-4 at R. Doc. 33-4 at 4-5. 6 R. Doc. 1 at ¶¶11-14; R. Doc. 33-2 at 2. 7 R. Doc. 33. 8 F ED . R. CIV. P. 56; see also Celotex, 477 U.S. at 322– 23. 9 DIR ECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 10 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 – 99 (5th Cir. 20 0 8); see also Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 11 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 5 2 favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 12 “[A] party seeking sum m ary judgm ent always bears the initial responsibility of inform ing the district court of the basis for its m otion, and identifying those portions of [the record] which it believes dem onstrate the absence of a genuine issue of m aterial fact.” To satisfy Rule 56’s burden of production, the m oving party m ust do one of two things: “the m oving party m ay subm it affirm ative evidence that negates an essential elem ent of the nonm oving party’s claim ” or “the m oving party m ay dem onstrate to the Court that the nonm oving party’s eviden ce is insufficient to establish an essen tial elem ent of the nonm oving party’s claim .” If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 13 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative evidence that negates an essential elem ent of the non-m ovant’s claim , or (2) affirm atively dem onstrating that there is no eviden ce in the record to establish an essential elem ent of the non-m ovant’s claim . 14 If the m ovant fails to affirm atively show the absence of evidence in the record, its m otion for sum m ary judgm ent m ust be denied. 15 Thus, the non-m oving party m ay defeat a m otion for 12 Hibernia N at. Bank v . Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Am oco Prod. Co. v. Horw ell Energy , Inc., 969 F.2d 146, 147– 48 (5th Cir. 1992)). 13 Celotex, 477 U.S. at 322– 24. 14 Id. at 331– 32 (Bren nan, J ., dissentin g). 15 See id. at 332. 3 sum m ary judgm ent by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the m oving party.”16 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that eviden ce supports his or her claim .”17 If the non-m oving party fails to oppose the m otion, all facts contained in the m ovant’s statem ent of uncontested m aterial fact are considered adm itted. 18 LAW AN D AN ALYSIS Under the Medical Settlement’s terms, a Plaintiff bringing a BELO lawsuit for a LMPC must prove the following elements: (i) The fact of the diagnosis, i.e. whether the class mem ber was correctly diagnosed with the alleged LMPC; (ii) The amount and location of oil, other hydrocarbons, and other substances released from the MC252 Well and/ or the Deepw ater Horizon and its appurtenances, and/ or dispersants and/ or decontam inants used in connection with the response activities and the timing thereof; (iii) The level and duration of the class member’s exposure to oil, other hydrocarbons, and other substances released from the MC252 Well and/ or the Deepw ater Horizon and its appurtenances, and/ or dispersants and/ or decontaminants used in connection with the response activities and the timing thereof; (iv) Whether the class member’s alleged LMPC was legally caused by his or her exposure to oil, other hydrocarbons and other substances released from the MC252 Well and/ or the Deepw ater Horizon and its appurtenances, and/ or dispersants and/ or decontaminants used in connection with the response activities; (v) Whether any alternative cause exists for the alleged later m anifested physical condition; and 16 Id. at 332– 33. The burden would then shift back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the non-m ovant. Once attacked, “the burden of production shifts to the non m oving party, who m ust either (1) rehabilitate the evidence attacked in the m ovin g party’s papers, (2) produce additional evidence showin g the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explain in g why further discovery is necessary as provided in Rule 56(f).” Id. at 332– 33, 333 n .3. 17 Ragas v. Tenn . Gas Pipelin e Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quotin g Skotak v. Tenn eco Resins, Inc., 953 F.2d 90 9, 915– 16 & n.7 (5th Cir. 1992)). 18 LR 56.2 4 (vi) The amount, if any, of com pensatory damages to which the class m ember is entitled. 19 While a Plaintiff in a BELO lawsuit need not prove liability, a claimant must prove causation. 20 The Medical Settlement “unam biguously requires that a BELO claim ant dem onstrate that exposure to oil and/ or other substances legally caused his or her physical condition in order to receive com pen sation for a LMPC.” In general, “when the conclusion regarding m edical causation is not one within com m on knowledge, expert m edical testim ony is required to prove causation.”21 In the context of toxic tort suits under general m aritim e law, the Fifth Circuit has explain ed, “[a] plaintiff in such a case cannot expect lay fact-finders to understand m edical causation; expert testim ony is thus required to establish causation.”22 According to BP’s statement of uncontested facts, Plaintiff cannot prove her LMPC was legally caused by exposure to DEEPWATER HORIZON related substances. 23 BP’s uncontested facts and Plaintiff’s deposition reveal that none of Plaintiff’s treating physicians connected her meningiom a with her work on the oil spill. 24 Additionally, Plaintiff produced no expert reports or testimony connecting her meningioma with her 19 R. Doc. 33-4 at 15-16; see also Piacun v. BP Expl. & Prod., No. 15-cv-2963, 20 16 WL 7187946, at *7 (E.D. La. Dec. 12, 20 16) (fin ding the Medical Settlem en t “does not provide recovery for a physical condition not legally caused by a BELO claim ant’s exposure to oil and/ or other substances used in connection with DEEPWATER HORIZON response activities”). 20 Piacun, 20 16 WL 7187946, at *7; see also In re Oil Spill by the Oil Rig “Deepw ater Horizon” in the Gulf of Mexico, on April 20 , 20 10 , No. 10 -m d-2179, R. Doc. 13733 (E.D. La. Nov. 26, 20 14); R. Doc. 33-4 at 1516. 21 Cibilic v. BP Expl. & Prod., 20 17 WL 10 64954, at *1 (E.D. La. Mar. 21, 20 17) (quoting Lassiegne v . Taco Bell Corp., 20 2 F. Supp. 2d 512, 524 (E.D. La. 20 0 2). 22 Seam an v. Seacor Marine, LLC, 326 Fed. App’x 721, 723 (5th Cir. 20 0 9). 23 R. Doc. 33-2. 24 R. Doc. 33-2; R. Doc. 33-5 at 8. 5 work on the oil spill, despite a deadline to produce expert reports by no later than September 14, 20 18. 25 A party moving for summary judgm ent may satisfy Rule 56’s burden by demonstrating to the Court “that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim .”26 Plaintiff has failed to oppose this motion and put forth any evidence that she m ay have of causation. As such, the evidence is insufficient to establish that Plaintiff’s LMPC was legally caused by exposure to DEEPWATER HORIZON related substances. 27 Because Plaintiff cannot prove an essential elem ent of her claim, Defendants are entitled to judgm ent as a m atter of law. 28 IT IS ORD ERED that Defendants’ m otion 29 is GRAN TED . N e w Orle a n s , Lo u is ian a, th is 4 th d ay o f Octo be r, 2 0 18 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 25 R. Doc. 33-2; R. Doc. 28 at 2 (scheduling order settin g the deadline for the production of expert reports). 26 Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). 27 R. Doc. 33-2; R. Doc. R. Doc. 33-5 at 8 . 28 Celotex, 477 U.S. at 331. 29 R. Doc. 33. 6
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